Evidence, Practice and Procedure: Persuasion (2008)

In May 2008, the Honourable David JS Jackson KC delivered the following paper on “persuasion”. Whether you are appearing in Applications, at Trial, or on Appeal, the helpful suggestions are timeless. The further recommended reading should also be noted and utilised – no doubt the Supreme Court Library could assist in that regard.

By the time one comes to a seminar like this, a barrister or advocate has been bombarded with the word “persuasion” quite a bit. We all know what it means, or at least we think we do. And all would agree that it is the aim of “advocacy”. There is a useful book written which employs the expression in its title, namely the Technique of Persuasion by Sir David Napley, first published in 1975 which was last revised in a fourth edition in 1991. Barristers in particular like to fasten on words such as “advocacy” and “persuasion”. There is now a professional connotation to their use in the context of our work lives.

However, “persuade” is no more than an English word taken from a French or Latin precursor which literally translates to “advise through”. A common meaning, we can accept from the Oxford Shorter Dictionary, is “to seek to induce a person to or from a belief or course of action”.

What other words might do instead of “persuasion”? It is difficult to think of one which quite captures the meaning of the word as we use it. The context in which we use it denotes winning an argument in court. Going back to the common meaning, the someone whom we seek to induce to or from a belief or course of action is a Judge.

A form of selling

Persuasion is a lot like selling. There is a fair argument, in my view, that it is simply a particular kind of selling. What makes it different from other kinds of selling is that buyer is the Judge, the person you are seeking to induce to or from the belief or course of action.

What makes a Judge different, as a buyer, from other transactions of sale? There are at least a few differences which are important, in my view. First, the Judge does not have to buy your argument but he or she is usually constrained to making the choice between two opposing contentions. There is always the alternative put up by the other side. In simple economic terms, there is never a shortage of supply. Secondly, the Judge has no personal interest in the transaction – he or she gets nothing out of it besides the satisfaction of having carried out the judicial oath. This is something that an advocate can too easily forget. Again, in simple economic terms, it means that if you want to increase your chances of making a sale, you should make it as easy as possible for the Judge to accept your offer rather than the alternative offered by your opponent. Later on I will come to a few things which, in my view, assist in making the Judge’s job as easy as possible.

Candour

Thirdly, and this is one of the most important points that I can make, when you try to sell one of your arguments to a Judge there is a significant difference from when, say, a used car dealer tries to sell a car to a customer. When the used car dealer is selling to the customer, he or she knows that it is highly unlikely that the customer will be coming back to buy another car tomorrow. In that sense, the used car dealer who gets away with selling a bit of a lemon to the unsuspecting customer does not have any great reason to be concerned about the effect of that sale on repeat business. As an advocate making an argument to a Judge in a court where you appear regularly, things are a little different. If you present an argument to a Judge which turns out to be a dud and the Judge finds out about it, your credibility in that Judge’s eyes will be lowered significantly.

There is another side to this coin, however, which is more positive. It is that one of the greatest weapons in terms of effective advocacy is candour. On this you do not have to take my word. I can give you two quick examples from the judicial horse’s mouth:

(a) first, on the occasion of his first presiding as Chief Justice of the High Court in Melbourne in 1952, Sir Owen Dixon said:

“Candour is not merely an obligation, but …. in advocacy it is a weapon ….”;1

(b) secondly, on the occasion when Justice Heydon was farewelled from the New South Wales Court of Appeal in 2003, he gave a speech in which he quoted from another speech given in the House of Commons in 1908 in tribute to the 8th Duke of Devonshire who had died. The Leader of the Opposition said:

“I think of all the great statesmen I have known the Duke of Devonshire was the most persuasive speaker; and he was persuasive because he never attempted to conceal the strength of the case against him ….”.

Justice Heydon’s example might be a bit flowery for some people, but the point is made well enough and it can be no coincidence that High Court Judges reiterate it from time to time.

Not a negotiation

Another aspect of the techniques of persuasion, as I see them, is that there is a very distinct difference between trying to present a winning argument on the one hand and an ordinary negotiation on the other hand. This is another point where selling in general and selling an argument to a Judge in particular require different approaches. In a negotiation, it is traditional, some would say universal, that the transaction is concluded by a process which starts with each side taking an initial position. Then, through counter-offers, concessions are made so that ultimately the parties meet somewhere between the positions. Litigants often have the same approach to their expectations of the outcome in litigation.

As you know, it is perfectly acceptable for litigation to be conducted on the basis of alternative cases, sometimes inconsistent alternatives. However, although such an approach may be legally permissible in the conduct of a case, in my view it is not often that it is an approach which leads to the successful persuasion of the Judge. There are two points about this which I would like to make to you.

First, if there are a number of discrete reasons why your client should win a case, it is often not all that difficult to work out among the points which of them are arguable, which are likely to succeed and which ones are, to use an expression I first heard from a now retired Court of Appeal Judge, “killer diller points”.  If it is possible to do that, you should be able to present your arguments in a way which concentrates on the better points and also, if possible, discards the points which are not likely to succeed or are only faintly arguable.

Why should you do that? I can give you the answer to that question by referring to a story I was told by two Supreme Judges in the early 1990s. They were then only recently appointed. They had both just returned from a visit to England where they had listened to one of the most famous Law Lords give a public lecture. After the  lecture, the Law Lord (who I think might have been Lord Diplock) took questions and he was asked the question: “What quality do you value most in an advocate?”  The remarkable thing about the story is that one of the two recently appointed Judges turned to the other before Diplock answered and whispered: “brevity.” Almost at the same time, Diplock gave his answer to the audience, which was: “brevity”.

Now that does not mean Judges do not want to hear your arguments. But it does mean that they want to hear your best arguments and not to have their time wasted by points that will not win.

Overselling

The second point about the difference between presenting an argument and being in a negotiation is that from the opening of a case to the closing address, it nearly always serves the aims of an effective advocate not to oversell. Overselling tends to happen more at the opening end than the closing end of a case, perhaps for obvious reasons. In terms of the opening end of a case, if you watch closely you will see it happen consistently in two places: first, where people overstate their cases in the pleadings and, secondly, where they overstate them in the opening of the evidence.

The inherent problem in overstating a case either in the pleading or in opening the evidence is clear enough.  By opening the case in that way, the advocate creates an expectation in the judicial mind that at the end of the case it will have a certain shape and character.  Instead of that initial impression, which is important, being confirmed by the evidence, the process of leading evidence tends to break it down and with it confidence in the advocate’s case.

May I give you one other example of trying to present an argument like a negotiation which happened to me many years ago?  An advocate who did not have enough evidence on a point to make out the necessary factual basis to warrant the exercise of a particular discretionary power interrupted the Judge after the Judge had delivered his reasons, but before he pronounced the formal order dismissing the application, to ask for an adjournment so he could get further evidence.  The Judge’s reply was:

“What do you think this is, 20 questions?”

That example is a bit extreme but it illustrates, I hope, the point that Judges do not consider that they are or should be in the business of sorting the wheat from the chaff. It is the advocate’s responsibility to reduce the case to its simplest and best possible format, at least if he or she hopes to persuade.

A little on I will say something about the use of written advocacy but before I do that I would like to offer some simple comments about some techniques of persuasion that can be applied in some of the basic steps in the conduct of a case which goes to trial in the usual way.

Pleadings?The first point I want to mention is the pleadings. You may wonder why I would think that the pleadings are an important element in persuasion.  here is more than one reason. The first reason has to do with the logical force and brevity with which your case can be conducted. All of you will by now be familiar with the requirement, which is universal, that a civil case pleading must allege material facts but not the evidence2. That rule is one which these days is honoured in the breach rather than by observance. We now get long narrative pleadings with all sorts of things in them. I think that is partly because people fail to appreciate the rule’s significance or its purpose. Material facts are those facts which must be pleaded and proved in order to make out a reasonable cause of action. If any one material fact is not proved, the case fails. If any one material fact is not pleaded, no reasonable cause of action is disclosed in the pleading. If all the material facts are proved, the case must succeed. If only the material facts are pleaded, no false issues can be created.

What has all that got to do with persuasion? I think the answer is that if at the outset of a case the pleader has identified and collected both what they must prove to win and discarded what they do not need they have gone a long way to persuading the potentially distractible judicial mind of the winning nature of the case. There are other advantages, which perhaps have just as much to do with persuasion, including that the pleader will have created the template for both the proof that they must gather for and present at the trial and also for the findings of fact that they will try to persuade the Judge to make.

The second reason that the pleadings are important is that if the case is accurately and precisely pleaded, the advocate will have taken advantage of the first opportunity they have to persuade the Judge because he or she will read the pleadings before the case starts, at least in most instances.

OpeningThe next step in the usual case that I want to say something about in terms of persuasion is the opening of evidence. Sometimes you will see someone open a case by effectively reading to the court from the statements of the witnesses who are to be called. Whilst there are number of possible ways to open a case, generally effective advocacy is like any other form of oral presentation. It requires a logical order in order to make it worth listening to. The order in which the statements are compiled in most barristers’ briefs may not quite do the trick. In a case based on a factual story, the obvious logical order is nearly always chronological. The best method of opening is to open the facts you will prove in chronological order with appropriate brief references to the source or sources of evidence by which you will prove those facts including admissions in the pleadings, documents you will tender and witnesses you will call. You can thus use the opening effectively to alert the Judge to where the issues lie on the pleadings.

The persuasive effect of a powerful opening should not be under-estimated. In some circumstances there may be good reason why an opening should take some considerable time. As an example, over 20 years ago, I was in a case where my leader opened for over two days in a dispute over the construction of a road in northern Queensland. The case was opened chronologically by reference to the detailed contemporaneous documentary record which usually exists on a major building project. Visual aids were used as well, in a number of forms. For a start, a bundle of the documents to be put into evidence was prepared, in several volumes. It was indexed and paginated so that the advocate was able to take the Judge to the precise page and the precise passage which he wanted to extract from each of the particular documents as he opened the case. The Judge followed the documents with care, highlighting with a marker the important passages. Secondly, there was a film or films of some of the events or scenes that were in question which were played during the opening in order to assist the Judge to understand the issues. The weight of the opening was such that after two days the case settled against one of the defendants and the remainder of the trial was significantly shortened.

In the evidence

This is not the occasion to refer to the persuasive aspects of leading evidence in general. There are many books and courses about that subject alone.

The next step in a usual trial is the closing address. When I first came to the Bar, there was a very experienced practitioner in nearby chambers. He said to me that he thought it was his job to get the evidence out and once that was done it was up to the Judge to do the rest. That is not, I would urge on you, the approach of the effective advocate to the closing address.

By now, all of you will have heard more than one barrister make an address or closing argument in a case after a trial. In civil trials, I think there is a common error which is frequently made. It is the failure of an advocate to identify all the findings of fact which they want the court to make or not to make. As I have said, if the pleadings are right in the first place, they will provide a good template against which to formulate the necessary ultimate findings of fact for the court to accept or reject in deciding the case.

An allied point is that if the findings which are sought are collected conveniently at the outset, it is a relatively simple matter to identify the critical evidence which goes to each fact. Judges, in my experience, do not find it persuasive to have large slabs of the evidence read to them or summarised to them as evidence that they should accept or reject in circumstances where it is not clear to the Judge what the precise finding should be if the evidence is accepted or rejected.

There is another point which I would like to make about asking for the relevant findings, which doesn’t go to persuasion of the Judge as such. If in any case you are unable to get the Judge to accept one or more your “killer diller” points, you may end up appealing to a higher court. It is particularly embarrassing when contending for the case which should have been found below to be confronted with the problem that there was evidence both ways on a critical point yet there is no finding about it and no finding was asked for.

To get back to the closing address of the trial and your persuasive techniques, however, I would mention one other point which applies both to oral address and written outlines or submissions concerning the citation of authority for legal propositions. On most occasions, the use of authority should be confined to that which is necessary and no more. In writing, it is good technique to state the relevant legal principle and to refer, by footnote or in text reference, to authority for the proposition.

It is at the point of citation of authority that I think people sometimes forget what they have been taught about the doctrine of precedent at common law in this country. There is a common law of Australia in which the High Court is the highest appellate court3 and for our State Courts below it the Court of Appeal of Queensland the next highest court. The cases which you should cite for a legal proposition, therefore, should be the most recent or leading High Court decision on the point, or if there is no High Court decision on the point, the Queensland Court of Appeal. Following that, intermediate Courts of Appeal throughout Australia are next best, as our current theory of precedent requires other intermediate appellate courts and Judges at first instance to follow an existing intermediate appellate court decision on the same point4 unless clearly convinced that the other court’s decision is wrong.

May I move then to the use of written argument as a form of effective advocacy and some techniques of persuasion in oral advocacy using the tools which are provided in the form of written arguments in various forms. For brevity, I will use two examples, although I hope what I say about them will be potentially useful in the broader context.

Written Advocacy

The two examples are:

(a) outlines of argument in the applications jurisdiction which are required under practice direction No 6 of 2004 in the Supreme Court;

(b) the outline of argument required in a civil appeal in the Court of Appeal under practice direction No 1 of 2005 or on an appeal to the District Court under practice direction 5 of 2001.

As required under the practice direction the outline of argument required in the applications jurisdiction should not ordinarily exceed four pages. At the same time, it is required to provide a concise summary of the argument in point form, identify relevant authorities and legislative provisions and attach a chronology, where appropriate.

I have seen many outlines in the applications jurisdiction which are much longer. Sometimes that is necessary but in many cases it is because of a failure to observe the requirements of the practice direction. How do you keep it down to four pages? The answer lies in a number of simple techniques, in my view. First, rather than set out swags of the evidence extracted from the affidavits, it is better to articulate the facts in the briefest possible form with appropriate footnote or in text references to where the supporting passages in the evidence can be found. Secondly, the use and citation of authorities should be by reference to summary propositions of law in most cases, only extracting brief passages which are critical. Again, citations should be footnoted or referred to in text. Thirdly, if you are careful to review what you write with a view to eliminating repetition and adopting the briefest possible grammatical forms of expression, it is surprising just how much can be gotten into the limit of four pages.

The outline of argument required under practice direction 1 of 2005 for civil appeals to the Court of Appeal (and under the corresponding practice direction for appeals to the distract Court) is different in some aspects to the outline of argument in the applications jurisdiction. Specifically, it requires that the appellant’s outline of argument identify the reasoning of the Judge below which gives rise to the issues for determination in the appeal and that in setting out the arguments for the appellant it should state the basis for any contention that a finding of fact should not have been made or that a finding of fact which was not made should have been made, as well as the precise error or errors of law and the basis in principle or authority for a contention that the Judge below erred in law.

Importantly, the Court of Appeal practice direction specifically requires that there be a reference to the record supporting any factual assertions made and that it be free from exaggeration or misstatement when setting out the effect of the evidence.

I don’t have time to go into the detail now, but I would recommend to you a few articles about written advocacy, being:

(a) Simpson T, “Persuading Judges in Writing: Tips for Lawyers (And How Technology Can Help), http://www.llrx.com/features/persuadingjudgesinwriting.htm;

(b) Hayne KM, “Written Advocacy”, www.hcourt.gov.au/speeches/haynej/haynej_05mar07.pdf;  (c) Baida A H, Writing a Better Brief: A Useful Guide to Better Written Submissions in Appellate Advocacy, (2002) 22 Aust Bar Rev 149.

There is a lot to be said on the subject of writing style, particularly in American books and articles, but you cant go past Troy Simpson’s article recent article mentioned above and the sources referred to in it for insight about that.

I will mention only five points on style: use short words; use short sentences; use simple grammar and the active rather than the passive voice; avoid unnecessary words such as “clearly”, “obviously” and the like; and sacrifice everything else for logic and clarity.

It may seem blindingly obvious, but there is a tried and true formula for written submissions which follows the usual order of presentation of most written reasons for judgment: first state the issues; secondly identify the facts to be found and discuss the evidence; thirdly state the legal propositions necessary to resolve the issues and discuss their application including any necessary cases; and fourthly articulate the conclusion including the orders which follow from them. Perhaps the reason why submissions are often best presented that way is that it makes it easier for the Judge to use them (and hopefully adopt them) in writing the reasons for judgment. One technique which I think is a useful device in written advocacy, is to state the uncontentious facts that form part of the findings necessary for success in the case separately from the contentious facts or disputed facts. This helps the Judge to focus on what is left in dispute.

Orality with a written outline

It is not intended that the outline of argument either in the applications jurisdiction or civil appeals in the Court of Appeal or District Court ordinarily will be a full written submission. What is required is an outline. How then does an effective advocate use the outline when addressing orally?

In the interests of brevity, I will confine myself to the use of an outline of argument in the context of a typical appeal in the Court of Appeal. There are again well tried methods that work.

In opening an appeal an effective advocate will usually:

(a) assume that (at least one Judge in) the Court of Appeal has done some work on the case before the hearing. Every Judge in the Court of Appeal will have at least read the reasons for judgment below and the outlines of argument;

(b) articulate the main questions to be decided with precision in the first sentences – the court wants to know what are the points that matter.

(c) give to the court the itinerary of the oral address – you can often use the outline to show the intended path. If there are bits of the outline no longer relied on, identify them.

It is a bit difficult to speak usefully in a short time about the general techniques which are useful in the main part of the address. There is plenty of reading here about how to and how not to.  For some more recent examples, you might try:

(a) Jackson D F, “Appellate Advocacy”, (1992) 8 Aust Br Rev 245;

(b) Kirby M, Ten Rules of Appellate Advocacy, (1995) 69 ALJ 964;

(c) Sackville R, “Appellate Advocacy”, (1996-97) 15 Aust Bar Rev 99;

(d) Jackson D F, “Practice in the High Court of Australia”, (1996-97) 15 Aust Bar Rev 187;

(e) Heydon D, “Heydon an Advocacy”, (2003) 23 Aust Bar Rev 134.

May I attempt to make just a few points about using the written materials in an appeal. First, use the reasons below to advantage to the extent that you can. Point to the findings you rely on. Where there is an unchallenged finding made below, don’t waste the Court’s time by referring to the evidence about it. Secondly, get to the challenged findings or those which should have been but were not made quickly. Say briefly why the challenged finding is wrong (that will be in your outline – cross refer to the relevant bit and ask the Court to read the particular paragraphs);

(a) take the court to the critical bits of the evidence that show why the Judge was wrong (the relevant pages of the appeal book should have been identified in your outline) – but only the critical bits.

(b) deal with the contrary evidence as you go – don’t leave that to your opponent – deal with their best arguments in advance (candour again);

(c) the cases you rely on should be referred to in your outline as authority for the distilled proposition of law on which you are relying. Again, cross refer to the relevant paragraphs of your outline before you take the Court to the precise passages in the critical case or cases;

(d) don’t read long passages from cases – explain briefly what the issue in the case was and what you rely on the case for – then take the Court to the passage you say is of assistance;

(e) Where the question concerns the proper interpretation of a statutory provision, the modern approach emphasises that the text of the provision in the context of the Act.  That will often make it necessary to follow the fundamental provisions of the Act through to get to the provision in question, in order to put it into context.  Have copies of the whole Act available for the Court.

There is another important use of the written materials. It gives the Judge something to do besides simply listening to the spoken word of the advocate. By taking the court to your outline you are using two senses of the Judge you seek to persuade – hearing and sight. Stopping while you ask the Judge to read a brief passage creates a natural break in the flow of the advocate’s words. When the Judge has finished reading the passage and turns his or her attention again to listen to the advocate there is a refocussing. The same applies to appropriate use of the case law and the record of the evidence. Don’t forget to allow the Judge enough time to read the relevant bit. And don’t overdo it so that it becomes a chore rather than a helpful tool. Thirdly, what do you leave to reply?  In my opinion the answer is preferably nothing – it is better to poison the water for your opponent before he or she gets to address. That includes dealing with the opponent’s outline in advance – that is why you got it. Take the Court to the critical bits of your opponent’s outline and address by reference to those bits. You should also remember that the practice in Queensland, in civil cases, is that reply is only as to the law, although that is not so in other places, where reply ranges to any point provided it is not new. Lastly, what is different about addressing on an appeal from a proceeding at first instance? The most important point is that the primary facts have been found, so the Court of Appeal does not want to re-canvass all the evidence – that was what the trial was for. Also there is judicial restraint in interfering with findings of fact of varying degrees depending on the kind of finding.

If the appeal is to the Court of Appeal, there are three minds to persuade. That means they are harder to please and manage – a mini-hydra. They will interrupt any address you plan – it is the culture. That does not mean that you don’t have a plan. Generally, when interrupted the best response is to deal with the point of interest to the Judge. If you don’t, he or she is just as likely to stop listening or will keep at you about it until you do deal with it. Of course, there are some exceedingly clever Judges – they will ask difficult questions. What to do if you don’t know the answer? In my view, it is critical to know what you can concede and what you can’t concede consistently with success for the client’s case. But if you don’t know the answer to a question there is nothing to be gained by pretending that you do.

Endnotes

1. “Jesting Pilate”, Law Book Co, 1965, p.253-254.
2. UCPR, rule 149.
3. Cook v Cook (1986) 162 CLR 376 at 390.
4. ASC v Marlborough Gold Mines Ltd (1992-1993) 177 CLR 485 at 492.